Colman Herman v. Executive Office of Housing & Economic Development (SPR 20191831)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

September 23, 2019 SPR19/1831

Jonathan M. Cosco, Esq.

General Counsel

Executive Office of Housing and Economic Development One Ashburton Place, 21st Floor

Boston, MA 02114

Dear Attorney Cosco:

I have received the petition of Colman Herman appealing the response of the Executive Office of Housing and Economic Development (EOHED) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested “hard copies and electronic copies of any and all communications related to [identified individuals] signing a ‘Severance Agreement and Release’ dated February 20, 2019.” EOHED provided Mr. Herman with a response September 5, 2019 which Mr. Herman appealed to this office on September 6, 2019.

The Public Records Law

The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G, L, c. 4, § 7(26).

It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.MLR. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption), To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832: Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

Jonathan Cosco, Esq, SPR19/1831 Page 2 September 23, 2019

Attorney-client privilege

A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. Suffolk Constr, Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Disclosing attorney- client communications to a third party generally undermines the privilege. Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009),

Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk Constr, Co., 449 Mass, at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney client privilege is being claimed.” G. L. c. 66, § 10A(a).

In EOHED’s September 5" response to Mr. Herman, EOHED states that it asserted the attorney-client privilege for the withholding of certain documents. EOHED provided a privilege index. EOHED established the communication between EOHED General Counsel and EOHED staff falls under the under the attorney-client privilege given that (1) EOHED staff were seeking legal advice from EOHED’s General Counsel pertaining to the issues concerning the drafting and entering into the Severance and Release Agreement, (2) the communication was made in confidence since it was between EOHED staff and EOHED’s General Counsel, and (3) EOHED never waived or took any action to waive the attorney-client privilege between EOHED staff and EOHED’s General Counsel.

Whereas EOHED established that the redacted material was privileged communications from an attorney to a client seeking legal advice that has not been waived, the Department met its burden to redact the information within the under the attorney-client privilege,

Additional responsive records

In Mr. Herman’s September 5" appeal he contends “Mr. Cosco states that there is a total of 21 emails, but the emails noted in subsequent paragraphs do not add to 21 emails.” It is unclear what documents are in EOHED’s possession requested by Mr. Herman. See G. L. c. 66, § 10(a)(ii), (b)(ii), (iii), The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii), (b)(i1).

Jonathan Cosco, Esq. SPR19/1831 Page 3 September 23, 2019

With respect to Mr. Herman’s September 6" appeal stating EOHED is in “clear violation of the commonwealth's records retention schedule.” EOHED indicated that:

“EOHED does not possess any text messages or emails from personal email accounts that are responsive to your request. We note that several of the persons involved in the matter of interest are no longer employees of EOHED or OCABR and accordingly I no longer have access to work mobile phones that were in use during the relevant time period. Specifically, former Secretary Ash, former assistant secretary Kirk, and Mr, Chapman all have left the positions held during the relevant time period. According to the EOHED staff who are responsible for assigning work cell phones and reclaiming them when employment terminates, a work cell phone is typically cleared of texts and other data when the phone is turned in, and before it is reassigned to a new employee.”

If such records were destroyed, EOHED must demonstrate whether it followed proper records retention protocol. Please note, EOHED must institute safeguards to ensure that all ‘records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15.

Conclusion Accordingly, EOHED is ordered to review the requests made by Mr. Herman and provide any requested records in accordance with the Public Records Law, its Access Regulations and

this order within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us,

Sincerely,

Rebecca S, ecca. Mawnan

Supervisor of Record

cc: Colman Herman